Felony status imposes lifelong limits on a person’s ability to vote and serve on juries, gain employment and education, and access public housing. It has also been associated with significant decreases in life expectancy. Mass incarceration is the result of intentional policy decisions over the past forty years that were motivated by race. In part one, we explored the history of mass incarceration came to be and how these policies have impacted those caught up in the prison system. In part two, we will examine why there are racial differences in mass incarceration and how we can manage a criminal justice system beyond jail or prison.

A wide range of policies from slavery to legislated housing discrimination (e.g. redlining) have limited community investment and upward mobility in communities of color. According to Ta Nehisi Coates, many of these policies have criminalized simply being black. For example, the historical Fugitive Slave Act criminalized seeking freedom and vagrancy laws criminalized being out of work in areas where no one would hire blacks. 1 These “crimes” and racist stereotypes of blacks as criminal or violent have led both black and white Americans to be biased and fearful toward African Americans. 1 However, on a much more direct level, African Americans find themselves crossing paths with the criminal justice system more often than whites for a wide variety of reasons. Ultimately, however, they boil down to three main factors:

Conscious or unconscious bias results in large differences in rates of being stopped by the police at traffic stops or under policies such as “stop and frisk”. In both situations, police have been allowed by the courts to stop citizens based on nothing more than a hunch or to search a home based on informants, even when they are known to be unreliable. In fact, between 2004 and 2009, officers found weapons in less than one percent of all “stop and frisk” encounters, and they were more likely to be recovered from whites. Despite this, blacks were more likely to be victims of force during these stops. 2

Behaviors that are more likely to impact impoverished communities or communities of color are criminalized. For example, the penalty for possessing crack was one hundred times more severe than possessing a similar weight of cocaine. Similarly, cash-strapped cities (like Ferguson, MO) often use law enforcement for revenue generation, penalizing traffic violations, loud music, uncut grass, or wearing saggy pants. When citizens cannot pay these fines they often face jail time. 1,2

Limited access to legal representation causes arrestees to accept plea bargains to avoid harsh mandatory sentences, often on charges that are trumped up and could not be defended in court. The Supreme Court upheld these harsh sentences, in one case upholding a sentence of forty years for possession of nine ounces of marijuana. Similarly, “three strikes” policies are counted as individual charges rather than cases, so a person could go to prison for life for one criminal act. 2

What are the alternatives to incarceration?

The impact of incarceration is profound, disproportionate, and expensive. Because this system is now so entrenched, it can be difficult to see how it could be any other way. However, there are many important alternatives to prison that are often cheaper and more effective at achieving the ultimate goals of improved community safety and offender rehabilitation. Some examples include:

Drug courts: A branch of the courts that provide drug treatment and community supervision to those with substance abuse problems. There are similar mental health courts that address adequate management of offenders with undertreated mental health diagnoses. 3

Community corrections: A penalty that keeps the offender out of jail or prison, but places limitations on his or her freedom. Examples include house arrest, meeting with a probation officer, passing drug tests, working, or performing community service. 3

Fines and restitution: Fines include paying court and administrative costs. Restitution involves paying for things like clean up of vandalism or property damage or paying for a victims medical bills. 3

Restorative Justice: A “holistic sentencing process focused on repairing harm and bringing healing to all those who are impacted by a crime, including the offender”. Sentencing circles, victim restitution, victim-offender medication, and community service are common strategies used. 3

Mass incarceration is the result of intentional, discriminatory policy decisions in housing and criminal justice. These policies were designed to have a disproportionate impact on communities of color, particularly black communities, to appeal to white middle and working class voters. Their impact was further bolstered by conscious and unconscious bias in detection of crime and enforcement of penalties. Those caught up in the system have little recourse because the courts have insisted that they must prove conscious bias exists to challenge the penalties they face. Incarceration places serious limits on social and economic opportunity and health throughout an offender’s life, even worse it places similar limits on the opportunities of offenders’ children. It is not an intractable problem though, by reversing damaging policy decisions, addressing racial bias (particularly unconscious bias) in the criminal justice system head on, and using more creative and constructive strategies to deal with crime, we can improve community safety for everyone and have more resources available to support the most vulnerable.

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